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charge certain duties cannot be held liable for Mitchell on the bond, could not be liable to where there is a change in the firm, although respond for the laches of the firm, for it would the firm name is not changed. As the surety's be the default of a different party from that for liability is strictissimi juris and cannot be ex. which they were bound. Mitchell was at lib. tended by construction, his guaranty to a part. erly to employ such agency as he chose to assist nership is extinguished if any partner is taken bim. He could pay assistants a stipulated into or retires from the partnership, unless it salary, or compensate them with a portion of appears from the terms of the instrument the profits of the business. It was a matter of tbat the parties intended the guaranty to be a indifference to the plaintiff, so long as Mitchell continuing one without reference to the com- fultilled all the stipulations of his agreement. position of the firm. A party may be induced If he employed unfit agencies, and thereby the to become surety for the individuals who com property was squandered and lost, it was, so pose a firm because of bis confidence in their far as this plaintiff is concerned, the default of integrity, prudence, accuracy, and ability as Mitchell alone, and he and his sureties must bnsiness men, but be cannot be presumed to respond. If the fact that defendant took in a have intended to become responsible for the partner in conducting the business of the possession of such qualities by some third per- agency did enhance the risk of these defendson, who may be afterwards taken into the firm ants, as the sureties of Mitchell, it was not inwithout bis knowledge or consent. It is often duced or recognized by the plaintiff, and in the power of one partner, by want of dis was a matter over wbich" the defendants had cretion or integrity, to ruin another.”

quite as much control as the plaintiff. We Our attention has been called to certain de- think that the referee was right, under the cisions which it is urged with great earnestness circumstances of the case, in finding that are opposed to the authorities already cited, Mitchell was responsible for the acts of Clapp,' and we are requested to follow them as enun- as for any other agent or assistant Ibat be emciating the sounder doctrine. These decisions ployed, in conducting the business of the are Palmer v. Bag9, 56 N. Y. 523, 64 Barb. 641; agency; and that money that came to the Hayden v. Hill, 52 V1. 259. But, in our judg- bands of Clapp in the conduct of this business ment, these cases are plainly distinguishable by legal intendment came to the hands of from the case before us for final settlement. Mitchell. Palmer V. Bagg, 64 Barb. 641." Their facts were different from the facts of And in Palmer v. Bagg (56 N. Y. 525), the this controversy in vital particulars. The court said: "We do not think this sufficient to sureties there had become responsible for the change the relations between Fanning and the honesty of an individual agent. As tbe court plaintiffs. The latter did no act creating or recvery properly held, such sureties took the ognizing any change. The agencies or means risk, not only of their principal's honesty, but wbich Fanning employed to dispose of the also of the dishonesty of those whom he might machines after receiving them did not neces. employ in any capacity to assist him in the sarily interfere with ihe relations between prosecution of the business of the agency. him and the plaintiffs.

He might emShould he hire a subagent as an assistant, the ploy other persons to aid in the selling and pay sureties would still be bound. And so they them wages or a percentage, or a sbare of would remain liable if he should see fit to give profits as partners. So long as the plaintiffs such assistant an interest in the property of contined their dealings with bim under the the business of the agency, provided the obli- power of attorney, they would not be affected gee did not deal with the new firm as agents, by any arrangements he should make.” In and thus extinguish the original agency. The neither of these cases did it appear that the sureties in those cases undertook io guarantee obligee bad dealt with the firm. the fidelity of the agent to his trust, and tbere. peared, a different question would have been fore necessarily agreed to be responsible for presented, for then the sureties could have whatever be should do bimself or through his claimed that their bond did not cover a partagents and employees. They agreed to as- persbip agency, but only an individual agency. sume the risk of his integrity and his business And it is apparent from the language of the judgment in employing assistants in any ca- courts in these cases that this fact would bave pacity. It is upon this ground that all ihese constrained ihem to hold that the sureties were decisions relied on by counsel for plaintiff pro- not liable. ceed. In Hayden v. Hill, 52 V't. 259, the court Finally, it is said that it does not appear said on this point: “(1) The report shows that that the plaintiff knew of the withdrawal of Mitchell took in one Clapp as a partner, and Eggerud from the firin, and that bence it folthat said agency was managed, and funds lows that the old firm, as a firm, was still liatherefor received, during a portion of the time, ble to the plaintiff for the funds misappropriby the partnership: and it is claimed that a ated, no matter by whom they were embezzled. portion of the funds from sales and leases of Upon this foundation plaintiff builds up the ibe property were received by Clapp, and never argument that, inasmuch as the principals in actually came into the hands of Mitchell. But the bond are liable, so are the surcties. But the report further states that the plaintiff never this reasoning entirely misapprehends the parecognized such partnership, and dealt solely ture of the obligation of the surelies in this with Mitchell. He refused even to receive a By signing the bond, they did not, in pote indorsed by the partnership name. If effect, assert to the plaintiff that they would the plaintiff had seen fit to have consigned the be bound whenever the principals in the bond property to the partnership, and dealt with it were liable in any way to the plaintiff, whether in such manner that the firm of Mitchell & because of their baving embezzled the prop. Clapp would have been the responsible parties erty, or by reason of the doctrine of estoppel in the accounting, these defendants, as sureties | which would seal their lips against a denial of

Had this apliability. They merely agreed to become re-, ever, is not responsible for the state of facts sponsible for the fidelity of the firm so long which might justify a recovery against the as each of the members of the firm should re- original members. There is no evidence here main in the business. They contracted to be that he was aware of the change. He seems bound for the acts of Arnestad so long as they to have been as much without notice as the could have the protection resulting from the plaintiffs themselves. But were it otherwise, association of Eggerud with him in the same we may say, in the language of Lord Black business. But they did not guarantee the in- burn, Nothing is stated to show either that the tegrity of Arnestad alone, unwatched and in defendant was under any obligation to inform fluenced by Eggerud, who may bave been the the banking house of that fact or that he took only person in whom they reposed any trust. any steps to conceal it.' At all events, his conif ihe plaintiff was ignorant of the change in tract is to guarantee a copartnersbip firm comthe firm, so were the sureties; and, if the sure posed of certain persons, and that contract canties have a right to stand upon the terms of not be altered or extended without his consent." their contract, then it behooved the plaintiff See also Backhouse v. Hall, 6 Best & S. 507. to ascertain at its peril whether all the persons We are unable to agree with counsel for for wbom the sureties had become responsible plaintiff that there is not sufficient evidence of still remained at the helm of the business of the dissolution of the firm of Arnestad & Eg. the agency. On this point the decision of the gerud. The evidence on the point is very satcourt in Birch v. De Rivera, 24 N. Y. S. R. 770, isfactory. Nor do we find anything in the is decisive. The court there said: “The fact case to rebut it. The deficit sued for having that the plaintiffs were not notified of the resulted from misappropriation of funds by change is immaterial. They may have an ac- Arnestad after Eggerud bad retired from the tion against the firm as it exisied before the business, the district court was right in ren. change because of failure to notify them of dering judgment for the sureties on the bond. such change, or to publish the dissolution. It follows that such judgment must be affirmed, That proceeds upon another principle, namely, and it is so ordered. the presumption attached to continuous firm dealings without notice. The guarantor, how- All concur. 34 L. R. A.

case.

END OF CASES IN Book 34.

RÉSUMÉ OF THE DECISIONS PUBLISHED IN THIS BOOK.

SHOWING the Changes, Progress, and Development of the Law during the Second Quarter of the Judicial Year Beginning with October 1, 1896, Classified as Follows:

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
II. CONTRACTUAL AND COMMERCIAL RELATIONS.
III. CORPORATIONS AND ASSOCIATIONS.
IV. DOMESTIC RELATIONS.

V. PERSONAL CAPACITY.
VI. TORTS ; NEGLIGENCE; INJURIES.
VII. PROPERTY Rights.
VIII. CIVIL REMEDIES; RULES AND PRINCIPLES.

IX. CRIMINAL LAW AND PRACTICE.

I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS.
Legislatire bodies.

Licenses. Failure to enter the yeas and nays on legis. The constitutionality of a statute imposing lative journals, as required by the Constitution the burden of a state license fee of $25 upon on the second and third readings of a statute itinerant vendors of goods, and requiring a authorizing municipal indebtedness, is held deposit of $500 as security, and then requiring fatal, although the speakers certify that the a local license fee in every place in which act was ratified. (N. C.) 487.

goods are sold equal to the amount of tax on A proposal hold a constitutional conven- the value of the stock of goods at the ratio tion is held to be properly submitted to popu. of the last tax assessment, is sustained, although lar vote and to be properly made by joint reso the act is oppressive. (Vt.) 100. lution, and not in the form of an ordinary

Taxes and assessments. law. (N. D.) 97.

Money of a nonresident deposited in a bank The distinction between a concurrent reso within a state, although mingled with trust lution of the legislature and a law is main funds, is held to be property within the state tained in a case which holds that such a reso

so as to be subject to the New York transfer lution ratifying an appointment by the gov-tax act. (N. Y.) 235. ernor is not "express authority of law,” within

While expressing the opinion that the legisthe constitutional provisions requiring such lature has power to tax domestic judgments in authority for any contract which can create a favor of and owned by nonresidents, a Kansas claim against the state. (Cal.) 262. A rule of procedure requiring two thirds of ments among other classes of personal prop

case holds that the statutes mentioning judgthe members of a branch of a municipal goverty to be taxed do not include judgments ernment in order to dispense with a reading of owned by nonresidents. (Kan.) 810. a proposed ordinance is construed to mean

Bonds of foreign corporations when deposited two thirds of the members voting, if they are within the state, although owned by a nona majority, and if a majority constitutes a resident, are held to be property within the quorum. (Md.) 469.

state subject to the New York transfer tax act. Eminent domain.

(N. Y.) 232. Payment into court of the amount of an A distinction between bonds and stocks of a award appealed from in eminent domain cases domestic corporation which are in the possesis held insufficient to satisfy a constitutional sion of a nonresident decedent at the time of provision that just compensation must be paid his death in another state is made by holding or secured before the property is taken or that the stock, but not the bonds, constitutes injured. (Pa.) 439.

property within the state subject to a transfer A railroad is held to be public and entitled tax. (N. Y.) 238. to the exercise of eminent domain, although A taxation of the average amount of live built for a few miles from a sawmill, through stock received each week by dealers and usua timbered region where all who choose are ally sold one day after receiving is sustained entitled to ride upon it as passengers or to under the Maryland statutes, although they have freight transported over it, even if the intend to export a part of them and actually number exercising the right is very small. do export about two thirds of all that they (Or.) 368.

receive. (Md.) 309. The authority given to a street railway com- A stipulation in a mortgage that the mortpany to cross any railroad is held limited to gagor sball pay all taxes upon the premises is the right to cross on streets or highways where held not to bind him to pay taxes required of other provisions confine the street railway the morigagee under a subsequent statute. route to the established streets and highways. (Micb.) 308. (Pa.) 572.

A constitutional limitation of the tax levy .34 L. R. A.

55

865

(PUBLIC, OFFICIAL, AND STATUTORY MATTERS.) by a county is held to constitute a defense without mentioning the kind of money in against such a levy for the enforcement of which they shall be paid. (Tenn.) 541. a judgment against a county, although the The prohibition of county aid to any indivalidity of the debt on which the judgment vidual, association, company, or corporation was rendered may be conclusively established is held inapplicable to aid given to the state or thereby. (Wyo.) 835.

the United States for a public improvement. The exemption of the road bed of a railroad (Wash.) 817. company from city taxation is held not to

A donation of county funds made to secure extend io the whole of a strip of land 1,500 the location of a state institution for the feeble feet wide used as a coal and ore terminal, minded within the county is upheld against the although a large part of it is covered by tracks; claim that it was not for a public purpose and but on a sale of such a yard to satisfy tax that it violated the rule of uniformity as to Jiens the purchaser takes subject to the ease taxation. (Wis.) 131. ment of the tracks. (Pa.) 564.

Toronxhip. A special assessment for special benefits on A township is beld to be a municipal corpuproperty in a levee district is held to be within ration within the meaning of a siatute auà constitutional provision that all property thorizing the refunding of indebtedness by the must be taxed according to its value, and issue of bonds. (Kan.) 674. therefore a tax on the land alone and partly by

Officers. acreage instead of value is invalid. (Tenn.)

The next election of the people prescribed 725.

by the California Constitution for the expira. Poll tar.

tion of commissions granted by the governor The right to sell nontaxable property to to fill a vacancy is held to mean the next elecenforce payment of a poll tax under the tion provided for filling the particular office Mississippi Constitution, declaring that such vacant, and not necessarily the next succeedtax is a lien only upon taxable property, is ing general election. (Cal.) 41. denied, and the provision for poll taxes is said

A statute to provide a bipartisan police to be intended more as a clog upon the fran. board by giving each member of a common chise than as a means of revenue. (Miss.) 472 council the right to vote for but two of four Municipalities.

members, and limiting the cboice to persons Land within the limits of a town, although belonging to the party having the bighest or the never divided into building lots, is held sub- pext bighest representation in the council, is ject to municipal taxation when near railroad held void. A majority of the judges agree depots and shops, with convenient access to that a minority of the council which is ibus highways and only a short distance from the given power to choose half the commissioners business portion of the town, so that it enjoys is not a city authority, within a constitutional police protection and the other benefits of" the provision allowing the legislature to designate town. (Ky.) 193.

the authority which can appoint local officers. A local option law providing that cities may,

(N. Y.) 408. if they choose, adopt certain charter provisions, The liability of a supervisor for public is held unconstitutional, under provisions pro- money lost by the failure of a bank in which hibiting special laws as to cities and requiring he had deposited it is sustained on grounds of laws as to them to be uniform throughout the public policy, although he acted in good faith state. (Minn.) 777.

and without negligence. (N. Y.) 678. A city contract for a water supply during

Ciril service rules. the term of twenty one years, made in the exer- A statute preferring veterans to all other percise of discretionary power given by the legis- sons except women in appointments in the lature, is held valid in Kansas. (C. C. App. civil service is sustained, although it gives 8th C.) 518.

them some advantage over other persons. The power of the court to cancel a contract (Mass.) 58. for a municipal water supply because of the

Voters and elections. inadequacy of the stipulated source of supply Nominations made by a political club were is denied, but reformation of such a contract is refused recognition as those of a county con. held to be within the power of the court under vention when the participants did not regard the Pennsylvania statute. (Pa.) 92.

themselves as a convention and had not been The right of a municipal corporation to erect chosen as delegates or any of the usual steps waterworks of its own is held subject to an been taken for a convention. (Mont.) 315. implied exception where it has contracted with

In another similar case in the same state the a private corporation for a water supply, and attempt of twenty one persons to form a new in such case if it wishes to own a water party and then ai the same time successively works plant it is held necessary for it to pro hold a county convention and a state convenceed as the statute authorizes it to do to acquire tion without any previous steps taken for a that of the private company. (Pa.) 567. convention was held unavailing. (Mont.) 313. Counties.

Nominations of presidential electors, made An act to incorporate a county is held void by the chairman of the state committee of a under a constitutional provision requring a political party with 100 associates by certifuniform system of county governments. icate, are held valid under the Wyoming stat(Nev.) 602.

ute when made in lieu of candidates previously Power to make county bonds payable in named in the same manner who bad declined, gold coin of the present standard, weight, and and when an objection is raised only by the fineness, is held not to be included in the committee of å different political party. power conferred by statute to issue bonds !(Wyo.) 845.

CONTRACTUAL AND COMMERCIAL RELATIONS.) The attempt of a nonresident candidate for state, it is held that state laws prohibiting the Vice President to prevent the use of his name running of railway trains on Sunday, if enon a state ticket for presidential electors nomi- acted in good faith in the exercise of the police nated at a certain state convention in Kansas power and without discrimination against is held ineffectual, although the statute pro- interstate or foreign commerce, do not violate vides that a person named as a candidate the Federal Constitution. (Va.) 105. may cause “his name to be withdrawn from

Public highways and grounds. nomination.". In this case there was no at

A grant to a subway company of the right tempt to decline the national nomination, or to lay a subway for electric wires under even to withdraw as a candidate within the streets is held to be invalid because made for state. (Kan.) 146.

private business, where no obligation is A statute prescribing a property qualifica-shown as to who should be permitted to use it. tion for voters at city elections is sustained, in (Mo.) 369. the absence of any constitutional provision to The right of a city to permit a permanent the contrary, although the Constitution pro- freight house to be built by a railroad com vides no other qualification for any male citi. pany on a public levee is denied because pubzen of full age than that of residence. (Md.)|lic grounds are held in trust for the public. 55.

(Minn.) 184. The addition of the party name after a can- The vacation of a part of a street at some didate's name written on a ballot in the same distance from one's property is held, reviewway that such designations follow the printed ing the authorities, not to give him any right names of candidates is beld not to destroy the of action, as the injury is common to the legality of the ballot when it was clearly not public, where ample means of access remain. intended as a distinguishing mark. (Cal.) 45. (Ind.) 769. The power of the legislature to prevent the

Equitable estoppel is sustained against a appearance of the name of any candidate for an office more than once upon an official bal: claim to a public park by virtue of a dedicalot is sustained against the claim that it in tion on a recorded plat where the original fringed the rights of electors. (Obio) 498.

owner has always continued in possession

without claim by the public except as it may The two thirds of the voters voting at an be implied from failure to tax it for some election whose assent is necessary to authorize municipal indebtedness is held to mean two years, after which he makes a new plat describthirds of all the votes cast for any purpose at

ing the land as his own, makes expenditures the election. (Ky.) 256.

upon it, builds a sidewalk under order of the The right to examine the records of the common council, and his second plat is exelectoral board is held to be limited to so much pressly adopted in an act incorporating the of the records as relates to the appointment city. (Wis.) 733. and removal of judges and commissioners of

Milk test. election and registers or the ordering of a new

The tuberculin test of cows from which registration. (Va.) 144.

milk is supplied to a city is held to be within

the power of municipal authorities to provide Courts.

by ordinance. (Minn.) 318. Two of the three members of the Tennessee court of chancery appeals, in the absence of

Garbage. the other, are held to have authority to con

An ordinance probibiting the transportation sider and decide cases, although there is no of garbage without a license is sustained as an provision of law on the subject. The case exercise of the police power, but held inappliseems to be without direct precedent. (Tenn.) cable to such rejected food as may be utilized 538.

for other purposes so long as they do not conA conflict between the rules of an appel- stitute a nuisance. (Conn.) 279. late and a lower court is considered in a case

Schools. which bolds that a judgment rendered against A reservation of the right to dismiss a school a party in the absence of his counsel in ac- teacher, stamped across his contract of emcordance with a rule of the court, but wben ployment, is held ineffectual to give the dithe court knows that the counsel is engaged rectors power to dismiss him arbitrarily, where in the supreme court in obedience to the rule the statute gives power to dismiss for incomof the latter court, is held in valid. (Pa.) 593. petence, improper conduct, or inattention.

An action for personal injuries the parties (Tenn.) 548. to which reside and the cause of which arose

State university. in another state is sustained under the Federal

The power of the legislature to designate Constitution guaranteeing equal privileges and where a department of the state university immunities to the citizens of the several shall be located is deniedander a constitutional states. (Wis.) 503.

provision giving the general supervision of the Interstate commerce.

university to a board of regents. (Mich.) 150. Overruling the prior decision in the same

a

II. ContractUAL AND COMMERCIAL RELATIONS.

The performance of one's own contract An agreement by the father of a bastard which he has hestitated or refused to perform child to convey property to the mother in conis held a sufficient consideration for a promise sideration of her release of her right to compel to him by a third person who will be benefited him to assist in maintaining the child is susby the performance. (Mass.) 33.

tained against the contention that the promise

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